This Month at ACUS: November 2021

UPCOMING EVENTS

 

Forum on Underserved Communities and the Regulatory Process

A multi-day, virtual forum this month addresses participation by underserved communities and their members in the administrative processes (including rulemaking and adjudication) by which agencies make regulatory policies. This forum addresses Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which requires that federal agencies “pursue a comprehensive approach to advancing equity for all,” including communities “that have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” Panels feature leading governmental policymakers, community advocates, and academic experts.

  • Sources of Reforms to Improve Engagement with Underserved Communities (November 8, 2021 – 1:00 pm to 2:15 pm ET): This panel will compare different approaches for developing and implementing strategies for enabling underserved communities to more fully participate in regulatory policymaking processes. Cass R. Sunstein, Senior Counselor at the Department of Homeland Security and former Administrator of the Office of Information and Regulatory Affairs (OIRA), will deliver opening remarks. Panelists include Boris Bershteyn, Partner at Skadden and former General Counsel at the Office of Management and Budget; Professor John D. Graham of Indiana University O’Neill School of Public and Environmental Affairs, former OIRA Administrator; and Professor Bijal Shah of Arizona State University Sandra Day O’Connor College of Law. The panel will be moderated by former OIRA Administrator and Professor Sally Katzen of NYU School of Law.
  • Barriers Preventing Underserved Communities from Participating in Regulatory Policymaking (November 10, 2021 – 4:00 pm to 5:00 pm ET): This panel will explore potential barriers—like burdensome filing requirements, lack of resources, and general uncertainty about how to participate effectively—that members of underserved communities may confront. Panelists include Suzanne Anarde, CEO of the Rural Community Assistance Corporation; Lisa Cylar Barrett, Director of Policy at the NAACP Legal Defense & Educational Fund; Eric Rodriguez, Senior Vice President for Policy and Advocacy at UnidosUS; and Susan F. Tierney, Senior Advisor at Analysis Group. The panel will be moderated by Professor Bertrall Ross of the University of Virginia School of Law.

Additional panels will be announced soon. For more information about the panels, speakers, and instructions for attending the forum, please visit www.acus.gov/underserved-communities-and-the-regulatory-process-forum.

Committee Meetings

Committee meetings are in full swing this month in advance of the December 16, 2021 plenary session. See below for more information about the projects, draft reports and recommendations, as well as information about future committee meeting dates.

  • The Joint Committee on Adjudication and Administration and Management, chaired by ACUS Public Member Aaron Nielson, will continue to discuss Quality Assurance Systems in Agency Adjudication. The third committee meeting will take place on November 17, 2021. This project identifies best practices for agencies when devising and implementing systems to assess and improve the quality of decisions in high-volume adjudicative programs. It emphasizes cutting-edge techniques (including artificial intelligence) to structure the capture and analysis of data; the selection, role, and institutional placement of personnel; the use of performance metrics; efforts to ensure fairness, impartiality, efficiency, and other important institutional objectives; and the relationship between quality-assurance review and conventional appellate review. You can find the most recent draft recommendation and report here.
  • The Committee on Regulation, chaired by ACUS Government Member Connor N. Raso, will continue to discuss Public Availability of Inoperative Agency Guidance Documents. The third committee meeting will take place on November 9, 2021. This project identifies for agencies best practices for maintaining public access to agency guidance documents that are no longer in effect, which the project refers to as inoperative guidance documents. It addresses factors agencies should consider in deciding whether to include certain types of inoperative guidance documents on their websites; steps agencies can take to make it easier for people to find the inoperative guidance documents in which they are interested; and what labels and explanations agencies should use to ensure the public can readily understand the context and significance of particular inoperative guidance documents. You can find the most recent draft recommendation and report here.
  • An Ad Hoc Committee, jointly chaired by ACUS Government Member Carrie F. Ricci and ACUS Public Member Allyson N. Ho, will continue to discuss Regulation of Representatives in Agency Proceedings. The second committee meeting will take place on November 8, 2021, and the third on November 16. This project explores how agencies regulate the conduct of attorneys and non-attorneys who represent parties and other interested persons in administrative proceedings. It addresses, among other things, why different agencies adopt different rules governing representatives’ conduct; the ways in which different agencies’ rules operate; how different rules, and inter-agency variation in those rules, affect agencies, representatives, and persons affected by agency actions; how agencies should consider rules on certain subjects; how agencies should consider formulating such rules; and where agencies should publish them. With respect to those subjects, the project seeks to identify best practices for agencies in developing and modifying their rules regulating representatives. You can find the most recent draft recommendation and report here.
  • The Committee on Adjudication, chaired by ACUS Government Member Nadine Mancini, will discuss Public Access to Adjudicative Proceedings. The second committee meeting will take place on November 12, 2021. This project seeks to identify best practices regarding when and how federal agencies provide public access to adjudicative proceedings. It examines factors, including constitutional and statutory requirements, that agencies should consider when determining whether to open or close particular proceedings; logistical considerations relevant to facilitating public access to proceedings that agencies open to the public; and the form and public availability of agency policies governing public access to adjudicative proceedings. You can find the most recent draft recommendation and report here.
  • The Committee on Rulemaking, chaired in an acting capacity by ACUS Public Member Kevin Stack, recently concluded its discussion of Technical Reform of the Congressional Review Act. This project considers potential technical reforms of the Congressional Review Act (CRA) that could clarify certain procedural aspects of the CRA while reducing administrative burdens on executive-branch agencies and congressional offices. Specifically, the project will consider: (1) phasing out the requirement that agencies submit paper copies of certain rulemaking materials to Congress in favor of an electronic process; (2) making it easier to ascertain key dates and time periods relevant to review of agency rules under the CRA; and (3) formalizing a procedure by which members of Congress can initiate congressional review of rules that agencies conclude are not covered by the CRA. You can find the most recent draft report here. The approved Recommendation will be published shortly.

If you are interested in observing the committee meetings for these projects, please contact info@acus.gov.

Working Group on Compiling Administrative Records

The next meeting of the Working Group on Compiling Administrative Records will take place on November 10, 2021. The Working Group will meet to discuss the newly released draft of the ACUS Handbook on Compiling Administrative Records in Informal Rulemaking. This Handbook provides practical advice that agencies can use to draft guidelines that explain applicable legal requirements, policies, and best practices to agency personnel. It will also help agencies explain these complicated requirements, policies, and practices in a manner that is clear, accessible, and directed toward the personnel charged with implementing them. Members of the public interested in participating in or observing the Working Group meeting should contact Jeremy Graboyes at jgraboyes@acus.gov and info@acus.gov to RSVP and request attendance information. 

ONGOING PROJECTS

ACUS is currently pursuing a number of ongoing projects. Highlights of several are included below:

  • Contractors in Rulemakings: This project explores the legal and practical considerations agencies face in contracting out certain aspects of the rulemaking process. The project examines the legal constraints applicable to use of contractors in rulemakings. It also considers practical issues associated with using contractors in rulemakings, including potential efficiency gains and oversight challenges. And it seeks to identify practices and factors agencies consider in deciding what types of rulemaking-related work to assign to contractors. Consultants Bridget Dooling and Rachel Potter are conducting interviews and drafting their initial findings.
  • Improving Notice of Regulatory Changes: This project studies the extent to which agencies’ current practices for providing public notice of relevant changes in law or policy (“regulatory changes”) might not provide some interested persons with actual notice of those changes. The project surveys agencies’ current practices for providing interested persons with notice of regulatory changes; explores and compares the effectiveness of different approaches to providing interested persons with notice of regulatory changes; and identifies factors for agencies to consider in assessing the effectiveness of their current practices for providing interested persons with notice of regulatory changes. Consultants E. Donald Elliot and Joshua Ulan Galperin are currently drafting their report on the subject.
  • Automated Legal Guidance: This project identifies best practices for agencies to use when implementing automated tools—like interactive chatbots and virtual assistants—to provide legal guidance to members of the public. Among other topics, it explores the types of automated legal guidance agencies issue and the circumstances in which different types of automated legal guidance are most effective; how agencies oversee the programs providing such guidance to ensure that the information they provide is accurate and useful; and how agencies can ensure that recipients of such guidance understand its limitations and do not rely on it to their detriment. Consultants Josh Blank and Leigh Osofsky are beginning their research and conducting interviews.

For more information on ongoing ACUS Projects, subscribe to our mailing list. See here for more information about our ongoing Assembly Projects and here for more information about our ongoing Office of the Chairman initiatives.

RECENT PUBLICATIONS & REPORTS

White House Legal Aid Interagency Roundtable

ACUS is pleased to join the White House and Department of Justice in announcing the release of the 2021 Legal Aid Interagency Roundtable Report, Access to Justice in the Age of COVID-19. The report describes the adverse impact of the pandemic on access to government programs, identifies key lessons learned since March 2020, and highlights innovation strategies adopted to advance access to government programs including expanding virtual services. Among the creative innovations the report highlights is ACUS Recommendation 2021-4, Virtual Hearings in Agency Adjudication, which provides “access-to-justice recommendations for all virtual Federal agency adjudications.”

ACUS is one of 28 member agencies of the Legal Aid Interagency Roundtable named in President Biden’s May 18, 2021 Memorandum on Restoring the Department of Justice’s Access-to-Justice Function and Reinvigorating the White House Legal Aid Interagency Roundtable. Chaired by White House Counsel Dana Remus and Attorney General Merrick Garland, the Roundtable develops policy recommendations and best practices to improve access to justice and facilitate coordination among federal programs on access-to-justice issues. 

Adjudication Updates

ACUS has published the first issue of Adjudication Updates, a new Office of the Chairman initiative to share adjudication-related developments with agencies, Congress, and the public. The September 2021 issue provides updates on agency adjudication related to access to justice, administrative review, alternative dispute resolution, appointment and removal, procedural rules, public access, representation, and the use of technology.